SAN FRANCISCO – In what many business advocates are calling a setback, the California Supreme Court has ruled that "on-call" rest periods are no longer permissible under state law.
InAugustus, et al. v. ABM Security Services, Inc., the state high court, in a 5-2 ruling, stated that employers must remove their employees from duties and relinquish any control over how employees spend their break time.

Scott Cole & Associates

Nonexempt employees in California are in most cases entitled to take a paid, 10-minute rest break for every four hours worked.

According to the court, an employer cannot designate required rest-period obligations as "on-call." The court did allow employers to reschedule a rest period should reasonable circumstances warrant it. And said employer can replace a missed break with another or pay a higher rate of pay for the missed rest break period.

Attorney Scott Cole, who brought the class action on behalf of security guards across the state says the court made the right decision.

"California has very protective laws with regards to workers' rights as it is," said Cole. "And I think this is an indication that the court is going to continue to promote this sort of worker-friendly laws that we've enjoyed for a long time."

Cole believes that the California ruling will set a precedent for workers in other states.

"I suspect this is going to bleed over into what happens in other states. But it's really a decision that's not just about security guards. It's about the nature of taking a break generally. I would imagine other states that would have similar meals and or rest break laws."

Jennifer Augustus sued ABM, claiming that ABM failed to provide guards with rest periods as required by California law because they were required to remain on call.

Augustus' main contention was that by requiring guards to keep their radios and pagers on and active, they were essentially "on call" and not on break.

A trial court ruled in favor of the guards and awarded the guards close to $90 million in damages and penalties. The California 2ndDistrict Court of Appeal later reversed the lower court, which led to the plaintiffs petitioning the California Supreme Court to intervene.

Scott says the Appellate Court saw workers as little more than warm bodies with very little value beyond their presence.

"Even if a guard is hired to sit somewhere and present a presence or deterrent, that's what the employer is paying for," explained Scott. "So, conversely, if they're on break, they should be allowed to leave that post. It's their time and so they should be allowed to spend the time as they want because they're not being paid for it."

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